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July 16, 2004

Leaderboard Report

Though Judge Cassell is still the leader in the clubhouse with 3 major Blakely decisions to his name, the Seventh Circuit is helping to set the pace for circuit courts with another Friday afternoon entry. In Simpson v. US, the defendant asked "for permission to file a second or successive collateral attack under 28 U.S.C. § 2255" following Blakely. The Seventh Circuit dismissed Simpson’s application, but did so "without prejudice to renewing his request should the Supreme Court make the rule announced in Blakely applicable to cases on collateral review."

Interestingly, the Seventh Circuit, in a unanimous opinon written by Judge Rovner joined by Judges Ripple and Williams, flatly concluded that the "rule announced in Blakely is based in the Constitution and was not dictated or compelled by Apprendi or its progeny." Then, after explaining how the Blakely rule would impact Simpson's sentence, the court explained:

Assuming that the Supreme Court announced a new constitutional rule in Blakely and that Simpson’s sentence violates that rule, the proposed claim is premature. The Supreme Court has not made the Blakely rule applicable to cases on collateral review as is required for authorization under § 2244(b)(2)(A) and § 2255 ¶8(2).... Should the Supreme Court announce that Blakely applies retroactively to cases on collateral review, Simpson can file a renewed application.

And, speaking of leaderboards, through two rounds of the British Open, Skip Kendall is the surprising leader at -7, while my pick Ernie Els is tied for fifth at -4 (along with Vijay Singh and others). Phil Mickelson posted an impressive 66 today to get in at -3, while Tiger Woods is hanging around at -1. Should be a great weekend of golf.

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Comments

I am a defense attorney researching some of the implications of Blakely.

Re: Late filings under 2255 and the watershed rule.

Taking the discussion in US v. Simpson in conjunction with some of the discussion in Howard v. United States, 2004 WL 1418433 (11th Cir. (Ala.)) (decided June 25, 2004) it seems to suggest a strong argument that late filings, as opposed to successive filings, under section 2255 would succeed in properly getting before a District Court. In Howard, the Court notes the difference in the language of section 2244(b)(2)(A), which requires a holding of the Supreme Court making the new rule retroactive, and 2255 6(3)'s language, which is less specific and reads "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." The Court goes on to decide the determination of retroactivity on its own accord. (Of note, however, is that the government conceded that the Court of Appeals had the right to determine retroactivity of the new rule at issue.)

It appears that the door is open for late filing of first 2255 collateral attacks. Of course, once in front of the court, the decision turns on the watershed rule. I think the first test, whether the rule is new or extends an existing rule, is satisfied. To what extent a court will listen to arguments about the fundamental fairness of these rules to satisfy the second test, which I think is strongly implicated by the changes presented by Blakely, in light of the Summerlin decision. (The radically different outcomes in the Shamblin case, 2004 WL 1468561 (S.D.W.Va.)(sentence of 240 months pre-Blakely changed to 12 months post Blakely), makes a stong case to me that Blakely has altered our understanding of the procedural elements essential to fundamental fairness.)

Thanks again for the excellent work on this blog.

Jim

Posted by: Jim T | Jul 16, 2004 4:40:45 PM

Sorry, I meant to say:

To what extent a court will listen to arguments about the fundamental fairness of these rules to satisfy the second test, which I think is strongly implicated by the changes presented by Blakely, in light of the Summerlin decision, is another matter.

Typing to fast.

Posted by: Jim T | Jul 16, 2004 4:43:07 PM

Oops.

Too fast.

Posted by: Jim T | Jul 16, 2004 4:44:16 PM

To say that Blakely was not compelled by Ring is not intellectually honest, IMHO. The state of Washington hardly managed an argument otherwise before the Supreme Court. If Blakely is retroactive, it ought to be so as of the date of the decision in Ring. This is good news and bad for prisoners, however. It also implies that the one-year limit for late-filed (but not successive) petitions began to run over a year ago, and has long since run out.

Posted by: Peter G | Jul 16, 2004 9:49:11 PM

Judge Rovner provides guidance that Blakely alters our understanding of Apprendi and its progeny on page 2 of the Simpson decision, noting that every federal court of appeals had held that Apprendi did not apply to guideline calculations made within the statutory maximum. To that extent, I think there is a legitimate argument that this presents a new rule under 2255.

Posted by: Jim T | Jul 17, 2004 11:02:43 AM

Of course, once in front of the court, the decision turns on the watershed rule.